July 30, 2014

There have been several cases under which an employer has been found liable for sexual harassment perpetrated by third parties. In the 2012 case of Ryan v. Holie Donut, Inc., an employee was sexually harassed by a frequent customer. The employer knew of the harassment and did nothing to report the incident to law enforcement officials or to stop the sexual harassment from occurring. The employer terminated the employee once she filed a report with law enforcement officials, afraid it would do more harm than good. The employee failed to file a complaint with the Massachusetts Commission Against Discrimination (MCAD) within the 300 day requirement, so her suit for wrongful termination and tolerance of sexual harassment was barred.

While employers may be liable, they are not held strictly liable for sexual harassment perpetrated by nonemployees. The standard that is used is the negligence standard, which is one of reasonableness. Therefore, when an employer realizes or should have realized that one of its employees is being subjected to harassment by a third party, the employer must ask themselves “did I take prompt, effective, and remedial action, or immediate and appropriate corrective action?”

If you think you have any questions regarding potential liability for sexual harassment by a third party, please contact a qualified attorney to discuss your legal rights.

June 05, 2014

Under Massachusetts law, all employees are protected from sexual harassment in the workplace. But what about alternative, non-employee workers, such as volunteers and independent contractors? Are they offered the same protection?

Massachusetts protects its workforce from sexual harassment through two different statutes. Chapter 151B is the primary recourse for victims of sexual harassment, and it provides extensive guidelines and procedures to deal with sexual harassment claims. An employee who believes that his or her rights have been violated must file a claim with the Massachusetts Commission Against Discrimination (MCAD) “within 300 days after the alleged act of discrimination.” After a claim is filed with MCAD, the well-defined administrative process will prevent most cases from ever reaching the courtroom.

Chapter 151B only applies to employers with six or more employees, however, and good public policy demands that there be a remedy for victims of sexual harassment in the small business setting as well. Thus Chapter 214, Section 1C, provides a separate cause of action for claims of sexual harassment, where a claimant can file suit directly in Superior Court if his or her rights are not protected by Chapter 151B. However, the secondary statute does not provide a loophole to bypass the Chapter 151B administrative requirements where that statute applies.

The Supreme Judicial Court (SJC) has held that an independent contractor is not an employee under Chapter 151B. Comey v. Hill, 381 Mass. 11 (1982). Similarly, a volunteer is also not entitled to approach MCAD for administrative relief. Lowery v. Klemm, 446 Mass. 572 (2006). It would appear that independent contractors and volunteers are just as vulnerable to the threat of sexual harassment as employees. One might assume that Chapter 214, Section 1C, would be applicable to these alternative types of workers, just like employees of small businesses. However, this is not necessarily true.

According to a federal district court case in Massachusetts, the scope of the employment relationship protected under Chapter 214, Section 1, is gleaned from the definition prescribed by Chapter 151B. That scope is limited to traditional employer/employee relationship, at the exclusion of the principal/agent status of an independent contractor. Vicarelli v. Business Intern., Inc., 973 F.Supp. 241 (D.Mass. 1997). Other traditional tort remedies are available to independent contractors. For example, interference with advantageous relations or infliction of emotional distress claims offer some protection.

The same can be said for volunteers who offer services without payment. The SJC has made it clear that volunteers are not eligible for protection under Chapter 214, Section 1. Lowery v. Klemm, 446 Mass. 572 (2006). This decision overturned a ruling by the court of appeals that extended the statutory protection to volunteers and student interns. Like independent contactors, volunteers must rely on other causes of action to find relief from sexual harassment in the workplace. While the SJC did not directly answer the question with regard to student interns, it is unlikely that Chapter 214, Section 1, will be interpreted to protect this class of worker.

The SJC has left it in the hands of Massachusetts legislators to determine whether independent contractors and volunteers should receive statutory protection from sexual harassment in the workplace.

October 02, 2013

A recent
decision by the Supreme Court limits employer liability in certain harassment
cases. Workplace harassment based on sex, race, or national origin is strictly
prohibited by Title VII; however, under the statute, employers will be held
strictly liable in harassment suits, only when the harasser is a “supervisor.” If
the harasser is an employee, then the victim must meet the burden of the
negligence standard.

Unfortunately,
the term, supervisor, is vague and remains undefined by Title VII. While many
employees operate under a formal supervisory title, many lower-level employees
are in charge of scheduling and assigning work, as well as directing other
employees.

In Vance
v. Ball State University, the plaintiff worked in a university kitchen as a
catering assistant. She took most of her orders from the catering specialist,
and she claimed that while working there she was harassed and assigned to
unnecessary menial tasks because of her race. The plaintiff complained multiple
times of the racial discrimination. However, the problem was never resolved.
This resulted in the plaintiff filing a complaint in federal court, alleging
that she suffered a hostile work environment, in violation of Title VII. She
further advanced that the catering specialist was her supervisor and
responsible for the hostile environment.

The court
held that the catering specialist was not the plaintiff’s supervisor, and thus
the employer — Ball State University — could not be held vicariously liable.
Upon hearing the case, the 7th Circuit determined supervisor liability
only adheres when the harasser has “the power to hire, fire, demote, promote,
transfer, or discipline an employee.” Since the plaintiff did not demonstrate
that the catering specialist had requisite control over her employment, the
plaintiff could not recover.

The Supreme Court ruled on
the issue and in a recent 5-4 ruling determined, that for purposes of Title
VII, employees can only count as supervisors when the have the power to hire,
fire, and promote. Title VII itself does not define the term “supervisor.” Thus,
the circuit split is resolved.

May 16, 2013

On May 1, 2013, an Iowa jury awarded a historic verdict of
$240 million to the Equal Opportunity Employment Commission (EEOC) in a case
involving severe and pervasive abuse of employees with intellectual
disabilities. This marks the highest jury verdict ever awarded to the EEOC.

The case was brought against Henry’s Turkey Service, a
Texas-based corporation conducting business in Iowa, on behalf of 32 men with
intellectual disabilities who were subjected to abusive employment conditions
between 2007 and 2009. Throughout this time, the employees were forced to live
in rodent-infested housing, and were subjected to ongoing physical and verbal
abuse.

Each of the 32 employees was awarded $ 2 million in punitive
damages and $5.5 million in compensatory damages. The unprecedented verdict is
a major victory not only for the individuals involved, but also for all those
dedicated to eradicating workplace discrimination. General Counsel for the EEOC
remarked, “this historic verdict marks one of the EEOC’s finest moments in its
ongoing efforts to combat employment discrimination, especially against
vulnerable and historically underserved populations.”

October 10, 2012

In the past year in Western Massachusetts, we’ve had a devastating tornado, a debilitating snowstorm, were touched by a hurricane, and even an earthquake. Our governor declared a “state of emergency” on more than a few occasions. But what does a “state of emergency” mean for employees? It turns out that it doesn’t mean too much.

When the governor declares a state of emergency, he or she is really just triggering MEMA, or the Massachusetts Emergency Management Agency. Also, the governor starts working to get the pieces moving to tackle whatever is plaguing the state—be it earthquakes, blizzards, or whatever else will get thrown at us in the near future. However, the governor’s declaration has almost nothing to do with private enterprise. Your boss can still call you in—especially if you’re one of the lucky “emergency staff” employees.

Once in a blue moon, however, the governor will order that only emergency personnel travel in the state. Only when this happens are you truly entitled to skip out on work and stay safely ticked away at home.

It’s also important to remember that your employer should not expect something of you that you simply cannot give. If it’s impossible to get your car out of the driveway, or if you’re sliding all over the roads, an understanding boss will let you off the hook. Just remember that no job is worth your life, and if you feel that your employer’s actions might be caused by discrimination or harassment, do not hesitate to call an employment attorney for advice on your situation.

September 19, 2012

According to the Massachusetts Civil Rights Act, your employer can’t threaten, intimidate, or coerce you if it interferes with one of your state or constitutional rights. But if you’re an at-will employee, you don’t have a right to your job.

For example, in a recent Massachusetts case, two at-will employees started dating. The woman lost her job and found work at a rival firm. When the worker’s employer found out the two had become engaged, the worker received an ultimatum: either the worker force his fiancée to quit her job, or resign within twenty-four hours. Otherwise he’d be fired.

In the event of his firing, the worker couldn’t maintain a clear right to his employment because he was an at-will employee. Nevertheless, the husband-to-be left his employment, and filed a lawsuit he was destined to lose.

That’s right, as long as your employer does not actually threaten your state or constitutional rights, then you may be subjected to similar ultimatums.

Fortunately, most employers realize that threatening at-will employees is a poor way to maintain morale, and many employee handbooks either protect employees from this by providing human resource avenues for internal complaints. It is important to be aware, however, that the state prohibits certain kinds of discrimination, so if you think that a threat to employment might really be about your race, religion, age, sexual orientation, nationality, gender, or another protected class, then you should consider contacting an employment law attorney.

June 20, 2012

Its election time again, and nothing gets people more heated up than politics, and addressing politics in the office could be asking for trouble. But what are the rules of politics in the office?

Can your boss move you to the far side of the office just because your bumper sticker is different from hers? Could you find yourself left out of meetings, looked over for promotions, or even fired for rooting for the other team?

Well, the answer depends on your employee handbook and on the nature of your employment. Federal law says that you can sue for political discrimination just as you can sue for racial or gender discrimination. However, that political discrimination law only applies to public employees. While a few states also ban political discrimination, Massachusetts is not one of them.

When you’re at work you are at the mercy of your boss and subject to your company’s handbook. From the boss’s point of view, he has the right to run his business the way he sees fit, unless there’s a law against it. There’s simply no law against political discrimination in Massachusetts, and hostile work environment lawsuits have to be based on recognized discrimination.

So what can you do?

Try to stay out of it. There are only a few questions that your employer can force you to answer, and your political stance isn’t one of them. So you could relax, let the political talk happen, and keep quiet. If a co-worker tries to set you off by raising a particularly debatable issue, it might be a good idea to leave him hanging and move on with your work.

Don’t take it too seriously. Your employer probably doesn’t want to replace you, so don’t give her a reason to. If you can hold back the urge to spar with your co-workers, and just roll with the punches, and you’ll be that much less likely to have a problem.

Follow the employee handbook. Most handbooks ban any activity that stops work from getting done. So just try to keep from distracting your co-workers, and if they are causing a distraction, then it’s usually in your employer’s best interest to put an end to it. You should watch out for rules in your handbook that say you can’t express certain ideas. Again, these are usually legal, and it’s important to follow the rules your employer makes for you.

June 13, 2012

Danny Zuko and Sandy Olsen of the box office musical hit, Grease, teach us that summer lovin’ may happen so fast. But if, unlike these high school sweethearts, you find yourself falling for an office co-worker, you may need to declare your love to your employer before you ever utter those three little words to your significant other.

Many offices have “love contract” policies aimed at limiting sexual harassment liability, should an interoffice romance go south. These policies require disclosure, where two co-workers are involved in a consensual romantic relationship. Love contracts may regulate acceptable displays of affection within the workplace. They also frequently require arbitration of any potential sexual harassment claims, and also eliminate the employer’s liability for any sexual harassment claims related to the relationship.

In addition to making office love birds squirm, love contracts may not be as effective as strict sexual harassment policies when it comes to limiting employer liability. After all, it may be difficult to determine when interoffice dating rises to the level of disclosure. Also, some couples may fear the consequences of disclosing their relationship – for example, same sex couples may worry that disclosure would lead to discrimination or retaliation.

The shortcomings of love contracts may be solved by alternative measures. While policies prohibiting inter-office relationships altogether are on the downslide, they are being replaced by clear guidelines in the employee handbook regarding conflicts of interest and sexual harassment claims that may arise from an office romance. These policies often draw stricter guidelines for relationships between managers and staff members, requiring managers to transfer positions to avoid allegations of differential treatment.

Well-drafted policies will protect the interests of employers and employees alike, limiting the employer’s liability exposure, and allowing summer lovin’ to span the seasons.

June 06, 2012

Currently, Massachusetts employees generally only have remedies for a hostile work environment or negative job treatment if that treatment was caused by discrimination against a protected class, or if it resulted in bodily harm. That means that if you are insulted or verbally abused at work, unless you can relate it to your religion, gender, sexual orientation, race, or some other protected class—you just have to deal with it. OSHA states that the employer has a general duty to maintain a “healthful” work environment, but violating this would likely only result in a slap on the wrist.

However, there has been a surge in anti-bullying legislation in the United States in the wake of recent school tragedies. Now some states, including Massachusetts, are attempting to pass anti-bullying legislation for the workplace. The Massachusetts bill is currently undergoing review, but is only a few steps away from possible enactment by the legislature, after which it would only need to be signed by the governor to become law.

This bill would enable employees to sue their employer for failing to properly deal with other employees’ “abusive conduct.” Abusive conduct is described as that which a reasonable person would find hostile. The bill explains that verbal abuse, insults and epithets, and other bullying behavior could be considered hostile—especially if the conduct continues over a long period of time, or if it is particularly egregious.

Importantly, the employer is not liable for the bullying behavior of an employee if the employer either took reasonable steps to take care of the problem, or was not really informed about the problem in the first place. However, if the employer is liable, the employee might be able to sue for reinstatement, removal of the offending party, back pay, front pay, medical bills, emotional damages, attorney’s fees, and even punitive damages.

The takeaway here for employers is that legislatures are starting to take bullying concerns seriously. Studies show that many employees feel that they are bullied either by coworkers or by their employers at some point in their employment.

Since a psychologically healthy work environment is generally good for business anyway, employers are hopefully already encouraged to strictly enforce anti-bullying guidelines with the aid of an active human resources department. Even though this legislation has not yet passed, employers would be wise to contact an employment law attorney to ensure that there are no flaws in their current system of protecting their employees from abusive conduct.

December 07, 2011

In federal cases alleging discrimination, harassment, retaliation, and violations of civil rights, it is long settled that defendants may recover only when the plaintiff's claims are "frivolous, unreasonable or without foundation." What about when some of the claims are frivolous?

The Supreme Court answered that question, unanimously, with Justice Kagan writing the opinion:

Section 1988 allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.

The court then went on to hold that if the defendant spends fees on issues that deal with both frivolous and nonfrivolous claims simultaneously, the defendant may not recover fees. Justice Kagan wrote, “but if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff…The basic American Rule thus continues to operate.”

Thus, the Supreme Court unanimously made sure that defendants will have a tough time recovering fees in cases including both frivolos and non-frivolous claims.